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Re: Monsoon settles: complies with GPL, pays undisclosed sum

From: Alexander Terekhov
Subject: Re: Monsoon settles: complies with GPL, pays undisclosed sum
Date: Fri, 02 Nov 2007 12:54:47 +0100

You must be new here, Geza. 

Geza Giedke wrote:
> not so: in German courts, the GPL has been upheld repeatedly:

Welte's idiotic GPL enforcement theory is based on misapplication of 
German Rechtsgeschäft concept of "condition subsequent" (misapplication 
because that concept has absolutely nothing to do with breach of 
contractual covenants).

Here's a feedback from one German appellate judge regarding Welte's 
idiotic GPL enforcement theory: 
(The first-ever ruling on the legal validity of the GPL - A Critique 
of the Case) 

Pay special attention to g). 

The judgment in English is here: 

>From Hoeren's profile: 


Judge at the Court of Appeal in Düsseldorf within the Trademark & 
Copyright Senate; 

Professor in Intellectual Property Law at the University of Muenster; 

Member, Task Force Group on Intellectual Property Law, European 
Commission/DG XIII. 

He must be Microsoft paid troll, no? 

See also 

("the possibly invalid part [of the GPL] (Sec. 2 of the GPL) is 
inseparably connected to the primary obligation, i.e. the grant of the 
license ... incorporated into the contract by virtue of the preamble 
of the GPL") 

and reread Hoeren's feedback g). 

In a way, the district court told Welte: 

Dear Plaintiff, you're not barred from claiming invalidity of the 
entire contract (due to antitrust or whatever violations in this or 
that clause)...  thank you for inducing others to break the law 
(antitrust or whatever) and please don't forget to sue all other 
parties to your entirely invalid contract and collect damages on the 
grounds of copyright infringement from them as well. 

("Defendant argues, the provisions of the GPL violate Article 81 EC 
and Section 1 of the German Antitrust Act (GWB), in particular the 
prohibition against price fixing and of predetermining the conditions 
of secondary contracts in the first contract. This would, according 
to Section 139 of the German Civil Code (BGB), result in the 
invalidity of the entire license agreement with the consequence that 
Defendant would not have a right of use in the software at all, so 
that Plaintiff could file a copyright infringement claim for that 
reason ... be entitled to plead invalidity of the entire contract 
and therefore allege that Defendant is lacking any license [to the 
three programs] whatsoever. ") 

> eg. against Skype in 2007:
> (in German):

The morons from the German district court "Munich I" should better 
learn what "first sale" ("copyright exhaustion" in EU speak) is 
about. To quote Appellate Judge Hoeren from the Copyright Senate 
of Düsseldorf Court of Appeals,

"The ignorance of the Munich court as to the opinio communis can 
also be demonstrated in connection with the problem of exhaustion. 
If the GPL is regarded to be binding even in cases of the transfer 
of software to a third person, the concept of exhaustion might be 
violated. The European Software Directive has provided that the 
exhaustion of the copy of a program is applied Community-wide by 
a first sale of that copy in the Community with the consent of the 
right-holder; once an author has sold a copy of a work, he or she 
loses the exclusive distribution right with respect to that work. 
A contractual limitation of this principle is held to be invalid, 
at least in Germany and Austria. The Munich court obviously did 
not know of these developments; instead it simply stated that the 
German copyright legislator had once expressed its support for 
Open Source. However, this support has been given only in other 
legislative debates regarding mandatory rights of creators to 
adequate remuneration. But even if the legislator generally likes 
Open Source, it does not at all mean that the legislator supports 
and considers every rule of the GPL as legally effective."

"In response to inquiries regarding a German court's ruling that 
Skype had breached the GPL, the company told 
today that it "has not acted improperly." The alleged violation 
was associated with the method by which Skype "distributed" GPL-
licensed source code with a Linux-powered VoIP handset.

A July 24 posting by Dr. Julia Kueng on the website of the 
Institute for Legal Questions on Free and Open Source reported 
that, a Germany-based group headed by software 
developer Harald Welte had recently prevailed in a lawsuit it 
brought against Skype for allegedly violating an aspect of the 
GNU GPL (GNU General Public License).

The violation reportedly involved the manner in which Skype 
distributed a third-party product, a VoIP handset with an 
embedded Linux kernel and supplied by SMC Networks as model 
WSKP100 (depicted on the right). The suit alleged that Skype 
failed to supply a copy both of the source code and of the GPL 
license itself -- as required by the GPL -- along with the 
handset to its purchasers. 

Skype reportedly defended itself against the suit by noting 
that URLs provided within the handsets' documentation pointed 
customers to where they could download both the GPL and the 
relevant source code. According to Dr. Kueng, the German court 
denied the sufficiency of Skype's defense, and ruled that Skype 
had breached section 3 of the GPL.

In an email received this morning by, Imogen 
Bailey, director of global PR, stated:

"Skype is surprised by the recent decision and believes that it 
has not acted improperly. At this time, we cannot comment further 
because Skype is considering its options in relation to appealing 
this regional judgment."

According to Dr. Kueng's posting, SMC Networks -- which 
manufacturers the WSKP100 -- is the target of a similar case that 
remains to be decided."


"The revolution might take significantly longer than anticipated."

                                     -- The GNU Monk Harald Welte

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